Arlen Specter, Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 399 Pa. Page 459]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

Edward Pacewicz, the relator, on April 25, 1959 was arrested in Philadelphia County and placed in custody pending extradition proceedings for his return to the State of New York. On July 14, 1959 the Governor of this Commonwealth approved the requisition for Pacewicz's extradition. On November 5, 1959 the

[ 399 Pa. Page 460]

relator filed a petition for a writ of habeas corpus in the Court of Common Pleas No. 2 of Philadelphia County for the purpose of securing his release from custody. On November 6, 1959, a hearing was held before Judge HAGAN and, after hearing, writ of habeas corpus was denied. From that order the present appeal was taken.

Relator raises two questions: (1) whether the court below acted fairly and impartially and (2) whether the failure of the Commonwealth to introduce into evidence the extradition warrant issued by the Governor of this Commonwealth entitled relator to a discharge from custody.

Under the Uniform Criminal Extradition Act of July 8, 1941, P.L. 288, 19 PS § 191.1 et seq., the courts of an asylum state do not determine the guilt or innocence of the party sought to be extradited. Courts of the asylum state will order extradition if (1) the subject of the extradition is charged with a crime in the demanding state; (2) if the subject of the extradition was present in the demanding state at the time of commission of the crime charged; (3) if the subject of extradition is a fugitive from the demanding state; (4) if the requisition papers are in order: Commonwealth ex rel. Dronsfield v. Hohn, 390 Pa. 434, 135 A.2d 757; Commonwealth ex rel. Hatton v. Dye, 373 Pa. 502, 96 A.2d 127.

At the time of hearing in the court below certain exhibits were marked for identification: the warrant of the Governor of this Commonwealth, the warrant authorizing relator's arrest, the requisition papers signed by the Governor of the State of New York and the affidavit of the Governor of New York empowering two named New York City detectives to arrest relator. Although it appears from the record that the Commonwealth was content to rest its case upon the basis of these written documents, nevertheless the Commonwealth did call two witnesses. J.S. Desmond, a New York City detective, and Harold Vallely, the prosecutor.

Relator had been indicted in the County of New York on three criminal charges: extortion, grand larceny in the first degree and personating a public officer. An examination of the three count indictment indicates that relator is charged with having on October 29, 1956 personated a police officer and, while so doing, obtained from Harold Vallely $3500, in cash, upon the false threat that Vallely, unless he paid this money, would be accused of a crime, arrested and detained.

Desmond testified that he knew relator both as Edward Pacewicz and Edward Harvey and without qualification identified relator as the person named in the requisition papers of the Governor of the State of New York. Vallely, the alleged victim of the extortion, identified relator, stated that he had seen him on three occasions and that relator had come to his place of employment in New York on October 29, 1956 - the date of the commission of the alleged crimes - and had been at his hotel room on two prior occasions.*fn1

[ 399 Pa. Page 462]

Relator's first objection is to the conduct of the hearing judge, conduct which he terms unfair and partial. Specifically, relator claims that the hearing judge was unfair and partial in three respects:(1) when he stated: "I am not going to tolerate these dilatory tactics any further. I have a long list. I am not going to make a big case out of this. There is no honest defense to this, and you know it"; (2) when he stated: "I am going to cut this [relator's counsel] cross-examination [of Vallely] short"; (3) when he refused to grant relator's motion for a continuance of the hearing for the purpose of presentation of alibi witnesses.

An understanding of the factual background is necessary to an evaluation of the hearing judge's conduct. On July 30, 1959, relator was originally brought before Judge MCCLANAGHAN and at that time relator's counsel told the court that he was going to file a petition for a writ of habeas corpus. Upon that representation of counsel, relator was released from custody upon posting of bail in the amount of $500. Despite relator's counsel's representation to the court, no petition for a writ of habeas corpus was presented until November 5, 1959 - three months and five days after relator had been before Judge McCLANAGHAN.*fn2

[ 399 Pa. Page 463]

On November 6, 1959 - although the return day of the writ of habeas corpus was November 13, 1959 - the parties appeared before Judge HAGAN and at that time relator's counsel stated of record: "We have no objection to it being heard today". The Commonwealth then proceeded with its case and produced the four exhibits, supra, and the witness Desmond. At this point it must be observed that the record before Judge HAGAN indicated that the Governor of New York, in accordance with the provisions of the Uniform Criminal Extradition Act, supra, had officially represented to the Governor of this Commonwealth that (1) the relator was charged with the commission of three crimes in the State of New York; (2) that the relator had been present in the State of New York on the date of the alleged commission of the crime, i.e., October 29, 1956; (3) that relator was a fugitive from the State of New York. Desmond's testimony then unequivocally identified relator as the person and individual named in the requisition papers. At that point in the hearing relator's counsel requested that "the prosecutor [Vallely] do something or other" and it was at that time the hearing judge made the first remark concerning which relator now complains. In view of the dilatory tactics pursued by relator's counsel and the clear and precise proof, through the medium of the written documents and Desmond's oral testimony that relator was in fact the person named in the requisition papers of the Governor of the State of New York, the hearing judge's remark is understandable. It is evident that relator's counsel, under the guise of a writ of habeas corpus, was attempting to secure a determination of relator's guilt or innocence of the offense with which he was charged in New York and for which he was being held for extradition.

Following the hearing judge's remark, Vallely testified. Upon completion of his testimony in chief, and

[ 399 Pa. Page 464]

after he had answered twenty-nine questions on crossexamination, the hearing judge cut short the crossexamination. Up to that point Vallely had clearly and unequivocally identified relator as having been in the State of New York on October 29, 1956, the time of his alleged commission of the crime charged against him there. When the hearing judge put an end to the crossexamination, relator's counsel was attempting to discredit Vallely's original identification of relator by photographs in New York. The identification of relator as the person who had been in New York when the crime was committed was complete and what relator's counsel was then attempting to do was discredit Vallely's testimony, a matter for the courts of the demanding state rather than the courts of the asylum state. The issue before Judge HAGAN was whether relator was in the State of New York when the alleged crimes were committed and not whether relator was guilty or innocent of the commission of such crimes. The hearing judge very properly cut short relator's counsel's cross-examination.

Relator further complains that the hearing judge refused a motion for a continuance for the purpose of the production of witnesses to show that relator was not in the State of New York on October 29, 1956. Relator's counsel had already informed the court of his willingness to proceed. A hearing of the witnesses whose presence relator's counsel desired would have been of importance on the question of relator's guilt or innocence of the commission of these crimes and not his amenability to extradition. The question of the continuance of this hearing was a matter ...

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